March 8, 2007

So says President Bush, responding to inquiries about whether he will pardon Scooter Libby. I know Bush often stumbles over his words -- and that the press loves to transcribe his remarks in especially stumbly-looking form -- but reading that quote, in that form, I hear the intention to hang back and hope the legal process spares him, but, if it comes to a point where there's nothing between Libby and prison, to pardon him.

Libby probably faces a prison sentence of 1 1/2 to three years for lying about his role in the disclosure of the identity of undercover CIA officer Valerie Plame, wife of war critic and former ambassador Joseph C. Wilson IV. But Libby could avoid jail time until after the 2008 presidential election through appeals, according to legal specialists -- timing that would make a pardon easier for Bush politically.

94 comments:

a perceived political prosecution then deserves a political resolution?

What of the number of citizens that don't feel this was a political prosecution...rather it was a straight up perjury/obstruction case and therefore shouldn't be resolved due to political considerations?

Shouldn't the president use his pardons (albeit he has an infinite number of them) perhaps at a little higher standard and for people who have no access to the caves of power?

Lewis Libby has now been found guilty of perjury and obstruction of justice for lies that had absolutely no legal consequence.

It was not a crime to reveal Valerie Plame's name because she was not a covert agent. If it had been a crime, Special Prosecutor Patrick Fitzgerald could have wrapped up his investigation with an indictment of the State Department's Richard Armitage on the first day of his investigation since it was Armitage who revealed her name, and Fitzgerald knew it.

With no crime to investigate, Fitzgerald pursued a pointless investigation into nothing, getting a lot of White House officials to make statements under oath and hoping some of their recollections would end up conflicting with other witness recollections, so he could charge some Republican with "perjury" and enjoy the fawning media attention.

As a result, Libby is now a convicted felon for having a faulty memory of the person who first told him that Joe Wilson was a delusional boob who lied about his wife sending him to Niger.

Quite frankly I've found this Libby business very complicated, and a bit boring. Thankfully, Stephen Colbert explains it to me in this video:http://minor-ripper.blogspot.com/2007/03/stephen-colbert-explains-libby-verdict.html

...lies that had absolutely no legal consequence....It was not a crime to reveal Valerie Plame's name because she was not a covert agent....Fitzgerald pursued a pointless investigation into nothing, getting a lot of White House officials to make statements under oath and hoping some of their recollections would end up conflicting with other witness recollections

I agree completely with your take, but the fact remains that Libby has been convicted of perjury. I'm not sure if he should be pardoned - I need to see the evidence against him to determine if he really screwed up or if Fitz pulled a "gotcha".

BTW, Fitzgerald is a good prosecuter. He may have gone after Libby with vigor [b/c Libby represented Marc Rich against him?] but he's a straight shooter [like Starr, who was considered a "boy scout" by Dems before the Clinton mess] His pet peeve is leaks and prejury, so I think Libby should have played a smarter game.

In many ways, Libby is in the same position as Eliot Abrams was during the 80s, except that (if I recall correctly) Abrams pled to a minor offense to end the seemingly endless investigation of Walsh against him. Abrams was eventually pardoned.

Ann says she is opposed to a pardon. I don't see why. A pardon is always a "bolt out of the blue" exercise of executive discretion. Except in the rarest cases (e.g. Nixon), anyone receiving a pardon has already been convicted, sentenced and lost whatever appeals may have been taken. While that pardons office at DOJ tries to impose some uniformity of treatment in this area, that office has no constitutional or other right to limit the executive's prerogative. At bottom, because no formal standards govern the exercise of the pardon power, no one can claim an entitlement to a pardon: it is always, fundamentally, arbitrary.

So what is it about Libby's situation that makes it unjust for the President to grant a pardon in his case as opposed to any other? To say that Libby is not especially deserving of a pardon and that the grant of such relief to him would be an arbitrary executive act is just to describe what a pardon is, and in the end says nothing significant here. A pardon to Libby makes sense because (a) the crime was, in the scheme of things, minor; (b) the crime for which he was convicted is not normally prosecuted as a matter of prosecutorial discretion; and (c) the conviction itself serves the normal purposes of deterrence and punishment (rehabilitation in this context being largely irrelevant).

Libby may not be entitled to a pardon, and granting one to him rather than the next guy is arbitrary. But that is always true. That Libby knows the president distinguishes him, and creates an impression of favoritism. But the real answer to that is that pardons are always arbitrary. So what's the problem?

Fen: The path that I'm saying is obvious is the path I'm perceiving that Bush is planning to take. I don't think Libby has an obvious legal escape. I didn't follow the proceedings closely at all. I would hope however that the court did its work well enough that it won't be reversed. And I hope in the end, we see that Fitzpatrick was a competent and fair prosecutor. It seems that Libby committed some crimes. If he also got a fair trial, that's it. I don't see the basis for a pardon.

Much is made that since Valerie wasn't covert by the meaning of the applicable law but then a large number argue that her employment was classified and it was the CIA who was incensed enough about it that they made the referral to Justice...

And in reading the indictment itself, it makes specific reference to the disclosure in the context of a criminal act or potentially thereof.

There should be plenty of legal reasons to keep Libby out of prison through 2008. The judge kept the defense from a lot of what it wanted to do, including having memory experts testify about how human memory really works, as opposed to how we all think that it does. Also, Fitz appears to have crossed the line during his closing arguments, bringing stuff in not in evidence, and stuff that he had agreed not to bring in. I am not saying these will ultimately get Libby off, or even a new trial, but are sufficient to burn a lot of time in appeals.

Before totally condemming Libby here, just remember that he was tried in probably the most hostile federal district in the country to him and the Bush Administration. Statistically, he might have had one or two people on the jury who voted for Bush in the last two presidential elections, and the rest voting for Gore and Kerry. Actually, there is a distinct probability that none did, as Republicans are rare enough in D.C. that Fitz could have used his peremptories to exclude the few who made it into the jury panel (probably not directly for that reason, but more likely because they were the type Fitz thought might sympathize with Libby). So, maybe not even one Bush voter on the jury. Likely not more than one or two.

Now, if he had been tried and convicted in Utah or Wyoming, we would really know that he was guilty...

Finally, compare giving Marc Rich a pardon because his wife was giving the Clintons money (and, in particular, Hillary's run for the Senate), and this situation, where the guy convicted was presumably working to protect the Administration. Actaully, most of Clinton's pardons were not as easily justified as this one would be.

I would imagine Libby himself would prefer reversal on appeal rather than pardon, but would take a pardon on Jan. 19, 2009 should the appeal process not have finished by then, or he's headed off to prison.

Hdhouse: I think it relates to the specifics of the law rather than the CIA's feelings (which, obviously, has its own institutional interests separate from any Administration or the nation's). My own reading is that Ashcroft, for not wanting to show political favoritism, referred the matter in the expectation the initial investigation would determine no crime and conclude the matter there.

The CIA referral was presumably before they knew who had done it in the first place. Or maybe they lost control. Because in the end, this whole thing turned out to be primarily a fight between State and CIA, part of a longer running fight partially stemming from State looking bad due to CIA incompetence. So, in the end, it is not the least bit surprising that Armitage was the initial leaker - he was doing two things: payback for the embarassment of Powell's UN WMD speech and making sure that everyone knew that Wilson was CIA and not State Dept. sponsored.

So, what about the disclosure of classified information? First problem - Cheney appears to have fairly broad declassification authority. The difference between Cheney and Libby under Cheney's direction disclosing classified information, and the NYT doing it, is that the former is legal.

Secondly, it is not clear that Plame's CIA employment was classified in the first place. The CIA apparently didn't do its normal gig about not being able to confirm or deny when Novack called them up and asked about her employment there.

And, finally, notably, Fitz couldn't find anything to prosecute there. Yes, this was an obstruction of justice case, but the allegation was never that Libby kept Fitz from prosecuting anyone (else) for anything, but rather that his misdirection and lying cost the government time and money.

Finally, compare giving Marc Rich a pardon because his wife was giving the Clintons money (and, in particular, Hillary's run for the Senate), and this situation, where the guy convicted was presumably working to protect the Administration.

But you also have the statements of the president (or his representatives) that anyone involved in the incident would be "gone" or "taken care of". Now, Libby was undoubtedly involved in disseminating Plame's name to the press. To pardon him would certainly be a contradiction of Bush's early tough talk (although I guess in a way it is "taking care" of him, just not in the way we thought the term was meant originally).

My reading of Ashcroft was a bit different. Contrary to all the hype about him as a bogeyman, he always came across to me as one of the straightest arrows out there, and the type who would recuse if there were even a whif a mile away of a possibility of his impropriety.

Maybe it was political, but I don't think so. What is humorous though is that all those hounding Ashcroft got Gonzolas as a replacement, who not only IS political, but arguably a lot smarter.

I hope in the end, we see that Fitzpatrick was a competent and fair prosecutor. It seems that Libby committed some crimes. If he also got a fair trial, that's it.

Ann, I too hoped that, in the end, we would see that Fitz was fair and that Libby got a fair trial. Unfortunately, having paid close attention to the trial, I do not believe Fitz was fair nor do I believe Libby received a fair trial. Two quick examples of my concerns:

In his close Fitz explained to the jury his theory of why it was impossible that Libby forgot Plame's identity and employment. Libby couldn't have forgotten because he knew that disclosing her name would put her life at risk. In making this argument, Fitz ploughed forbidden ground. The court had gone to great pains to explain to the jury they should not even speculate about Plame's status, yet here was Fitz saying Libby put her life at risk by disclosing her name. The judge tried to correct Fitz' error by instructing the jury that sometimes attorneys say things they don't mean to say in the heat of argument and that they should ignore what Fitz had just said. Right. Fitz has a history of raising new arguments in his close, so I doubt that this was a simple mistake.

Second, the jury foreman is a former neighbor of Tim Russert. He's been over to Russert's house for BBQ. Why, when Russert's credibility as a witness was a central to the trial, would you allow anyone with such close contact serve on the jury? Regardless, both the jury foreman and another member of the jury have pointed to what they said was a key piece of evidence in determining Libby's guilt. That evidence was an article from Time that VP Cheney had made notes on. The jurors both said that Cheney had given that article to Libby, which proved that Libby knew about Plame and that she was important to him. The only problem with that is that there is NO evidence Libby ever saw that article with Cheney's notes written on it. The judge allowed it to be submitted as evidence (over the objections of the defense) with the instruction to the jury that they were not to assume Libby ever saw the article or Cheney's notes. They clearly did not follow that instruction and used the article for purposes the court said were prohibited.

Fitz goes out of bounds on his close. That's not being fair. The jury didn't follow the judge's instructions in the use of evidence. (That's the judge's fault. He should not have allowed the evidence in.) That's not a fair trial.

Let's chew on this statement for just a second. Are you saying, arguendo, that Cheney's declassification authority includes the right to declassify the status of CIA employees simply for the purpose scoring political points against those who have embarrassed the administration? You do realize that declassification authority is generally held by the classifying authority, and that there must be truly exceptional circumstances for the executive (and why on earth should the VP have the right to declassify anything) to declassify anything, especially without explaining his actions or notifying the classifying authority (which in this case would be DCIA).

But if Libby did what he was convicted of doing, he obviously did it to benefit the Administration. In other words, he fell on his sword to further the cause. Yes, he may have gone to far, but most of Clinton's pardons were venal criminals who mostly did it for the money. Why is doing it for the money better than doing it for the person giving the pardon?

(Of course, that means that there is a nice symetry with the Clinton pardons - most of them were convicted for crimes somewhat tied to money, and they got their pardons by contributing money to the Clintons or their close family members).

So, Freder seems to think that the one guy who was convicted out of loyalty to Bush/Cheney isn't as deserving of a Bush pardon than all those guys who stole money from people, ran large amounts of drugs, or failed to pay their taxes, and were pardoned by Clinton.

So, Freder seems to think that the one guy who was convicted out of loyalty to Bush/Cheney isn't as deserving of a Bush pardon than all those guys who stole money from people, ran large amounts of drugs, or failed to pay their taxes, and were pardoned by Clinton.

I don't know where I defended the Clinton pardons (many of which--especially the Mark Rich pardon--were appalling). But I don't know why you guys are suddenly holding up Clinton as an example of the way a president should act, or at least to say "well Bush isn't as bad as Clinton--yet".

David, good points. I would also add that the judge did not allow evidence of Libby's workload in [which would have supported Libby's defense that thsi was trivial by comparison and easily misremembered].

Freder: But you also have the statements of the president (or his representatives) that anyone involved in the incident would be "gone" or "taken care of". Now, Libby was undoubtedly involved in disseminating Plame's name to the press.

I don't think Fitz proved the dissemination of Plame's name was in bad faith. Libby was responding to media inquiries about Wilson [who claimed the "office" of the Vp sent him to Nigeria]. Reporters were scratching their heads, trying to figure why VP or CIA would send Wilson, a known Bush detractor who was with the Kerry campaign, on such a sensitive mission. If follows that Libby would defend the administration by correcting the reporters: "No, we didn't send him and don't understand why CIA did either, although scuttlebut is that his wife works there and recommended him".

Let's chew on this statement for just a second. Are you saying, arguendo, that Cheney's declassification authority includes the right to declassify the status of CIA employees simply for the purpose scoring political points against those who have embarrassed the administration? You do realize that declassification authority is generally held by the classifying authority, and that there must be truly exceptional circumstances for the executive (and why on earth should the VP have the right to declassify anything) to declassify anything, especially without explaining his actions or notifying the classifying authority (which in this case would be DCIA).

Freder, like it or not, the VP has the authority to declassify anything. That authority was lawfully delegated to him by the President. (This seems to be the ONLY legitimate criminal issue Fitz investigated. Libby disclosed details of the National Intelligence Estimate to Judith Miller of the NYT. After close examination, it became clear to Fitz that Libby had been given the legal authority to do what he did.) In this case, the DCIA was informed. The Administration was working with the CIA to get the the NIE declassified (along with the details of Wilson's trip to Niger). The Administration was working under the erroneous assumption that, once the NIE was declassified, the media would realize that Bush had made the decision to go to war based on the best information available at the time. They assumed this would stop the "Bush Lied!" meme then current in the media. The CIA was taking too long to declassify the NIE (understandable since the NIE made the CIA look bad), so the VP authorized limited dissemination of the NIE to combat the misleading (and illegal) leaks coming from the CIA. There is nothing illegal, unethical, or even unusual, to what was done by Libby or the VP. What was illegal and unethical were the CYA leaks coming from the CIA. Unfortunately, that's not unusual, either.

Is it possible the perjury can be explained without having to invoke some more complicated conspiracy theory? For example: Libby may have believed that he had in fact violated the law in discussing Ms Plame and lied to cover that up. I think that would be the Ockham's razor interpretation.

Whatever the case, Libby is a big time DC Atty and I would have thought known the risks he was facing.

well, freder, the thing with these people is they are all basically gop lawyers -- they will use any defense they can grab onto, no matter how flimsy or silly, no matter how much it has already been demonstrated to be false or how contradictory it may be to earlier positions.

Let's chew on this statement for just a second. Are you saying, arguendo, that Cheney's declassification authority includes the right to declassify the status of CIA employees simply for the purpose scoring political points against those who have embarrassed the administration? You do realize that declassification authority is generally held by the classifying authority, and that there must be truly exceptional circumstances for the executive (and why on earth should the VP have the right to declassify anything) to declassify anything, especially without explaining his actions or notifying the classifying authority (which in this case would be DCIA).

Yes to your first point, assumming that it was even the case. The President was making the argument for war in Iraq, and Wilson was lying in the NYT about what he discovered in his trip to Niger and who sent him, in order to rebut that. Yes, it was political, but more importantly, it was strategic.

Remember, Plame and Wilson didn't own her classified status. Rather, it was owned by the government, which is headed by the President. He can declassify anything that he wants for any reason. And if the President believes that declassifying Plame's CIA employment would further the war effort, then that is his perogative. Ditto for the NIE.

You are correct that VPs don't usually have classification and declassification authority, or if they do, it isn't typically nearly as broad as Cheney has. Again, it is solely up to the president, and Bush obviously trusts Cheney a lot more than Clinton did Gore, or probably either Bush (41) or Reagan did their VPs. Remember, Cheney was brought onto the ticket because at the time, he had probably forgotten more about national security than Bush (43) knew at the time.

Freder: Do you have a link for this particular piece of gossip. I tried to find something on it and couldn't.

Here: Denis Collins, Juror #9 is posting a tell all at huffpo:

http://www.huffingtonpost.com/thenewswire/docs/libby/?p=2

/begins

"Judge Walton read the query sheet I'd marked earlier.

You know someone on the prospective witness list?

I do. Bob Woodward was my boss at the Washington Post for three or four years.

Would you tend to give his statements more credibility than the statements of other witnesses?

I immediately picture a party Woodward hosted at his Georgetown home for the Metro staff about 25 years ago. When I went looking for my girl friend, I found her with some copy aides and reporters in an attic piled high with boxes of files for one of his books.

"Unbelievable," said one of the reporters. "Look at the file labels. This entire box is backup for one interview."

But not infallible. Didn't he write two different books about going to war in Iraq?

Know anyone else on the list?

Washington Post reporter Walter Pincus. I don't think I ever spoke to him during my 10 years at the Post, but twice in the last 14 months we talked at parties thrown by a mutual friend.

Anyone else?

Until a year or so ago, Tim Russert was a neighbor. His back yard and mine shared an alley and a basketball hoop where our sons played. I attended a few neighborhood barbecues in his back yard."

Do you have a link for this particular piece of gossip. I tried to find something on it and couldn't. In fact, according to U.S. News & World Report the jury foreman is a woman, not a man.

Freder, I'm sorry, I may have misremembered whether Denis Collins was the foreman or not. However, Mr. Collins, a retired journalist who was on the jury, has a novel length article up on the Huffington Post. In it he discusses his relationship with both Russert and Woodward (his former editor). Here's a link to the article:

He can declassify anything that he wants for any reason. And if the President believes that declassifying Plame's CIA employment would further the war effort, then that is his perogative.

That you believe this is just shocking. It gives the not only the president, but apparently anybody he decides to grant the authority to, the right to endanger the country and a degree of executive authority that is scary indeed.

Suggesting that the trial was not fair because Denis Collins was on the jury is, well, unfair. The juror disclosed that information on the juror questionairre, the judge asked him about and Libby's lawyers didn't get him booted. Why they would want him on the jury, I have no earthly idea, but as Lowry suggested at the corner yesterday, the defense team must have thought others in the pool would be worse.

But not for any reason he sees fit. He must have a good reason to declassify material, not just do it on a whim or out of spite. I would hope that if he found out that a covert CIA agent was screwing his wife, he couldn't send that agent on a dangerous mission, then declassify that information and post it on the home page of Whitehouse.gov.

The Exalted wrote: "well, freder, the thing with these people is they are all basically gop lawyers -- they will use any defense they can grab onto, no matter how flimsy or silly, no matter how much it has already been demonstrated to be false or how contradictory it may be to earlier positions."

Dude, they are lawyers. GOP does not enter into it. There are ethical lawyers and unethical lawyers. Party affiliation is not involved.

But within the C.I.A., the exposure of Ms. Plame is now considered an even greater instance of treachery. Ms. Plame, a specialist in non-conventional weapons who worked overseas, had "nonofficial cover", and was what in C.I.A. parlance is called a NOC, the most difficult kind of false identity for the agency to create. While most undercover agency officers disguise their real profession by pretending to be American embassy diplomats or other United States government employees, Ms. Plame passed herself off as a private energy expert. Intelligence experts said that NOCs have especially dangerous jobs

No. It would be unethical but, according to the Constitution, would not be grounds for impeachment. I'm a bit surprised that someone who holds Geneva and international law sacrosanct would ignore the standards set in the US Consitution.

I've seen this across the net lately - people are confusing the terms "undercover and classified" with "covert agent". Under the law, Plame would need the status of "covert agent" as defined by US Code 50. She does not:

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; or

(B) a United States citizen whose intelligence relationship to the United States is classified information, and—

(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or

(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of Investigation; or

(C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.

You have most of that correct. Except it was the NYT article written by Joe Wilson, with Cheney's notations on it. It has been talked about as the most significant piece of evidence by both Denis Collins and Ann Redington-the jurors. Here is a link to the pdf of it at the trial exhibits at USDOJNew York Times Article

I find it surprising that Ann has such a lack of cynicism and a blind faith in the process.

As to the juror Denis Collins He wrote a spy novel about the CIA. He told the defense. He was a reporter and at HuffPo reports that he was mad at the inference that he would dig in his heels or something to that effect when it came to the reputation of reporters.

He was a grade school friend of Mo Do. That was told to the defense. He recommended Maureen Dowd for a job to Bob Woodward-he does not admit to thelling that to the defense. An article of MoDo's was also admitted into evidence-Feb 8th at USDOJ website.

He is a reporter the main witness against the defendant is a reporter and neighbor and there you have a compatriot inside the jury box in the perfect postion to vouch for the voracity of the primary witness for the prosection-Russert. Who knows if he did-I think it would be tempting.

It would be akin to a popular general testifying against you and one of his neighbors and fellow army officers is on the jury box. The trial is also taking place in the heart of Texas.

That's about the only opposite analogy one can make. It's that gross.

However, the media controls the perceptions of the public and you can't realistically expect the self descibed "fair" middle of the roaders to see it other than how they have been programmed to see it by the driver of the accultural social norms the unchecked Fourth Estate.

With respect to the question of Ms. Plames status, I thought Fitzgerald's failure to prosecute Armitage settled that question. Is my understanding wrong? Wasnt that the original objective of the entire exercise?

This trial is about perjury. It's a proxy for a bunch of other crap, but please -- Jim and others -- please bear in mind that Libby was not charged with any kind of revelation of classified material, covert status, or anything else.

Thanks, Mad--quite frankly the case became ever increasingly complex and wasnt exactly glued to my chair by thte case. Inasmuch as Fitgerald knew Armitage was the leaker early on, presumably Fitzgerald assumed she wasnt covert? It would seem to me that was the big issue; thats certainly the one being debated in part on this thread!

Seven--I knew the trial was about perjury--I had lost the bubble on the issue of exposing a covert agent and was, perhaps, naively assuming that were Ms Plame covert under the legal definition, and Armitage was the leaker of her name to Novak, then he, Armitage would be guilty of something.

Well Fitzgerald was trying two cases at once wanting his cake and to eat it too and when you had him on the big issues-whether she was covert and whether that was leaked by Libby-he would switch his shell game to the more narrow perjury and obstuction charges.

Fitzgerald brought his charges so narrowly before the court that he absolutely confined and restricted the options available to the Defense.

One of the biggest travesties to me is that Libby somehow lost the right to present a memory expert, and after eight hours of badgering by Fitzgerald here is a tragic bit of testimony Libby ends up giving-

Q. And do you believe the boondoggle was in the second conversation, not on July 12th?A. Yes, that's what I think. But I, I don't think it was in the van because my recollection, you know, could be wrong, but my recollection is that when he raised it, I was standing.Q. You were standing?A. That's my recollection.Q. Standing where?A. I don't remember. But I remember sort of either sitting or leaning down after he said it because . . .

Hat tip to Cecil Turner.

From GJ testimony available at the USDOJ website I linked previously.

also remember-

The Grand Jury found no evidence to bring charges against Libby. That is they found no evidence that Libby leaked Plame's status.

It is the conflicting testimony aquired by Fitzgerald that was used to bring this current narrowly constricted case before the courts.

Yet after promising to the Judge and the Defense that he would not bring up her covert status he did so during close.

Judge Walton had to inform the jury that lawyers sometimes say things they don't mean and to ignore that part of Fitzgerald's close.

Fitzgerald got the prejudical untried, unsupported smear on Libby before the jury in his most dramatic close after promising repeatedly during the course of the trial not to.

Lessons learned- NEVER ever talk to the FBI without an attorney, then during GJ testimony in which you cannot have an attorney present-

Always plead the Fifth.

Or if you are one of the Media Elites go on Imus and Plead the Mitchell.

Claim-

I must have been drunk!

That is how Andrea Mitchell avoided testifying.

She said to the court- had NBC lawyers present as evidence-that she lied on The Capitol Report even though you would think her livelyhood depended on her credibility and presented as evidence her conflicting statements on Imus that she lied-and that she must have been drunk.

So in a normal world NBC should have been ashamed to admit that one of their most prominent reporters with the greatest access to the State Department would say that she lied to the American public in their more credible venue The Capitol Report.

No. It would be unethical but, according to the Constitution, would not be grounds for impeachment. I'm a bit surprised that someone who holds Geneva and international law sacrosanct would ignore the standards set in the US Consitution.

Well no, I just don't believe the power of the executive is unlimited. And apparently you think that even though the founders fought a war because they abhorred an executive that was above the law, they would create an executive that was above the law. If the executive can perform actions that by their very nature would be contrary to the Constitution, then how can that be constitutional?

The right to classify and declassify anything is vested in the executive as is the right to pardon (regardless of what Sen Reid tries to do). The assumption is that the executive will use it wisely.

What I find worse is that the defendant cannot call a witness to prove that the primary witness against him is lying because to do that he would also have to have the witness called admit that she also was lying (I am speaking of Andrea Mitchell and Tim Russert here). Tim spoke on his NBC broadcast about the person appearing before a GJ not being able to take his lawyer with him and then gave his GJ testimony to the FBI with his lawyer present and then claiming he did not know that he was not supposed to have his lawyer present. He also testified to saying one thing when he had testified to another to the FBI but then the FBI somehow lost the testimony and the NBC lawyers kept all this out of the trial and the judge would not permit the defense to enter it in evidence. This would have shown that Libby was not the only one to forget. Libby was also not permitted to show how busy he was which then made it appear as if the only thing he was doing was the Plame thing and that any conversations with reporters (who also forgot things and could not even decipher their own notes) was to do with Plame only.

All in all this was not a well run trial and Fitz got away with almost anything he wanted to do. The worst was his final summing up when he brought up the Plame situation so boldly that the judge even told the jury to disregard it. As we can see from what the jurors have spoken about they instead disregarded the judge.

What I find interesting is that even the WaPo and Firedog Lake blogs agree that this case should never have been brought to trial.

The right to classify and declassify anything is vested in the executive as is the right to pardon (regardless of what Sen Reid tries to do). The assumption is that the executive will use it wisely.

Please provide the article in the constitution that grants the president the right to classify. And of course, the president can't even delegate the pardon power. The classification power is created by statute, not constitutionally granted, and presumably it can be limited by congress.

Alger Hiss was indeed a Communist and belonged in prison, and Julius and Ethel Resenberg did hand over atomic secrets to the Soviet Union. May the three of them enjoy eternity with Uncle Joe (Stalin, not McCarthy, you wags!).

But not for any reason he sees fit. He must have a good reason to declassify material, not just do it on a whim or out of spite.

You have it exactly backwards. There needs to be a good reason to CLASSIFY something. A President can DECLASSIFY something for any reason he wants.

Your argument that Bush can't delegate the power to declassify is also ridiculous, as the same statutes granting the President the power to classify and declassify also give him the power to delegate the authority. Surely you didn't think that every single one of the millions of classified documents the government generates each year were separately authoritzed by the President?

Revenant is correct. There must be a reason to classify something. And there must be a reason to continue to keep something classified. The president can declassify anything the president wants to. It is not a crime.

It's amazing to me that the left can simultaneously laud the Freedom of Information Act and say it's a crime for the person at the top of the executive branch to freely give out information.

I guess when you got no principles other than gaining power over whatever you can politically and economically, it's easy.

Your argument that Bush can't delegate the power to declassify is also ridiculous, as the same statutes granting the President the power to classify and declassify also give him the power to delegate the authority.

I didn't say he couldn't delegate the power to classify or declassify, but look at the statutes, but the power to declassify usually remains in the the classifying authority (for instance the director of the FBI couldn't declassify something classified by the CIA). The president of course can declassify anything, but the notion that he can do it on a whim or without consulting with the classifying authority imagines a scope of executive power that is astounding. Furthermore, to think that the general power to declassify can be delegated from the president to whomever he chooses is an astounding expansion of executive power (i.e., I would argue that the only things that the V.P. could declassify would be those items classified by the V.P.'s office, certainly not by the CIA)

You are seriously missing an aspect of this case that should concern you on Constitutional grounds, specifically the terms of the appointment of Fitzgerald.

Fitzgerald was not assigned 'functions' of the AG, he was assigned the 'full authority' of the AG thus giving us, in effect, a second Attorney General.

Thus Fitzgerald is guided by the JD guidelines but who is supervising his application of these guidelines?

When Wells challenged his appointment, Walton said he had no Constitutional problem with it. But the only briefs filed regarding supervision were from Fitz and Comey. And Comey had been a private citizen for six months at the time.

And Fitz claimed Comey, now a private citizen, could assess his handling of the case from press reports (which would require leaks from within the investigation to give any kind of clear picture.)

There was not a single brief filed by the Justice Department in this matter. Nobody there said 'I am supervising Ftizgerald.'

So, in effect, we have an individual with powers of the Attorney General who is supervised by a private citizen.

Don't you think there is something screwy about that?

All this has been presented to the OPR at Justice and they have responded that they do have jurisdiction and are looking into it but will not comment further until Fitzgerald's investigation is completed.

You are seriously missing an aspect of this case that should concern you on Constitutional grounds, specifically the terms of the appointment of Fitzgerald.

Fitzgerald was not assigned 'functions' of the AG, he was assigned the 'full authority' of the AG thus giving us, in effect, a second Attorney General.

Thus Fitzgerald is guided by the JD guidelines but who is supervising his application of these guidelines?

When Wells challenged his appointment, Walton said he had no Constitutional problem with it. But the only briefs filed regarding supervision were from Fitz and Comey. And Comey had been a private citizen for six months at the time.

And Fitz claimed Comey, now a private citizen, could assess his handling of the case from press reports (which would require leaks from within the investigation to give any kind of clear picture.)

There was not a single brief filed by the Justice Department in this matter. Nobody there said 'I am supervising Ftizgerald.'

So, in effect, we have an individual with powers of the Attorney General who is supervised by a private citizen.

Don't you think there is something screwy about that?

All this has been presented to the OPR at Justice and they have responded that they do have jurisdiction and are looking into it but will not comment further until Fitzgerald's investigation is completed.

They're arguing the merits of the case. You're the one pounding the table here. If you disagree with them, try attacking their arguments instead of attacking them personally.

bringing up clinton and sandy "burglar," attacks on joe wilson, and speculating as to what fitzgerald did or didn't know or what fitzgerald concluded was or wasn't an underlying crime...right, the merits.

Actually, the president can't declassify anything simply by opening his mouth, he must do it in writing. Furthermore, I would argue it is an abuse of his power (an therefore illegal) for him to do so for declassify without a bona fide good faith reason to do so (not just because he woke up this morning and decided the public needed to know the design of our most advanced nuclear warhead).

Regardless of why or how the president can declassify information, it is a whole other question who he can delegate the general power to declassify (in this case the V.P.). Note that I am not arguing that there isn't a statutory right to declassify information that is granted to the original classifying authority (e.g., that in general that the agency that classifies materials can also declassify it).

In this particular case, apparently the President has issued an Executive Order that grants Cheney a general power to declassify. It is not even clear that Cheney declassified the fact that Plame's position and employment with the CIA was classified. The claim has certainly never publically been made, although it has been hinted at. Certainly, if her position was declassified by someone, no one ever told the CIA, as they are the one who initiated the probe into who leaked Plame's name and position to the press.

Unless you are desirous of a Star Chamber which is outside the bounds of the Constitution, supervision must come from either the Executive branch or Congress (through statutory approval of the appointment).

The delegation of all the authority of the AG to Fitz was outside the statutory authority granted by Congress and Congress certainly did not confirm Fitz appointment as another AG.

Under the Constitution one can have either the Executive or Congress supervising the Executive or both. In this case it seems there is neither.

the power to declassify usually remains in the the classifying authority (for instance the director of the FBI couldn't declassify something classified by the CIA). The president of course can declassify anything, but the notion that he can do it on a whim or without consulting with the classifying authority imagines a scope of executive power that is astounding.

Not as astounding as your apparent belief that there is such a thing as an executive branch organization that doesn't answer to the President of the United States.

The Constitution states that the President is the Executive Power. This means that all executive organizations -- e.g., the CIA -- are within his authority. What you are suggesting is that the President cannot act without the permission of his inferiors, despite the fact that he's the person with the ultimate authority to tell them what to do.

The President could order the CIA to declassify an agent's identity and the CIA would have no choice but to comply. The notion that the President can't declassify the agent *himself*, and that doing so would be some "astounding" new power, is extremely funny, but legally ridiculous.

Your protestations lead to the notion that the CIA has authority over its boss, the Chief Executive.

You are obviously misreading or mischaracterizing what I wrote.

I don't dispute that the President can declassify anything he wants. What I am disputing is the notion that he can delegate the general power to declassify to the V.P. I am also disputing that he has the power to declassify for partisan political reasons or for reasons that are not related to bona fide operations of the government (that to do so would be an abuse of his executive power).

Is it your position then that declassification of the NIE, information re Wilson's trip, and the CIA report on Niger/Africa handed the administration just prior to the SOTU constitute partisan/political shenanigans?

Do you take the position that a critic of the administration who uses false information to undermine the administration should not be responded to with the facts that refute him?

If you're okay with the above, then what's the beef? If you feel Cheney declassified mrs. wilson's employment status then give us some facts or quit whining.

(1)where is there any evidence that Cheney or anyone else in the administration was told by the CIA that her status was classified?

(2)where is there any proof that her status was, in fact, declassified?

Woulda, shoulda, and coulda are only fodder for political accusations which are all that you are presenting.

Hey you little attack ants...Freder is quite right. Syl you are quite wrong. Seven Nachos remains as he ever was and always shall be.

I and others have urged you actually read the indictment. Since you are too lazy to do so, here is:

"f. Joseph Wilson was married to Valerie Plame Wilson ("Valerie Wilson"). At all relevant times from January 1, 2002 through July 2003, Valerie Wilson was employed by the CIA, and her employment status was classified. Prior to July 14, 2003, Valerie Wilson's affiliation with the CIA was not common knowledge outside the intelligence community."

And here is a link to the indictment: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/28/AR2005102801086.html

Read the chain of events.

As to the Vice President's ability to declassify at will:

"Top Secret" original classification authority may be delegated only by the President; in the performance of executive duties, the Vice President; or an agency head or official designated..."

The operative phrase here is "in the performance of executive duties" which is all through the Bush's Executive Order 13292 (http://www.fas.org/sgp/bush/eoamend.html)

Ohhh those pesky executive orders.

I would expect better from lawyers but alas over the years I've never been surprised when I expect far less.

are you suggesting that Cheney was performing executive duties and that by extension Libby was performing executive duties at the direction of Libby at the direction of Mr. Bush?

Yes. To release the NIE plus other documents that refuted Wilson's claims.

How do you square the language in the executive order with the event sequence in the indictment - which, last I heard, led to a conviction.

I already did.

The wife was a minor gossipy detail that was separate from the pushback. Fitz couldn't and didn't prove otherwise. In fact all the talking points listed everything EXCEPT the wife.

Libby was convicted of lying about hearing info about the wife from Russert and saying it surprised him and that he forgot he already knew it. He was convicted of confirming that info to Cooper when Cooper asked him about it.

are you suggesting that Cheney was performing executive duties and that by extension Libby was performing executive duties at the direction of Libby at the direction of Mr. Bush?

Yes. To release the NIE plus other documents that refuted Wilson's claims."

This must be confusing to you for some reason. Cheney did NOT authorize Libby to leak Plame's name. http://www.washingtonpost.com/wp-dyn/content/article/2006/04/13/AR2006041300111.html and that you admit.

When asked, libby lied.

However, the original executive order that addresses classification and declassification #12958(http://www.fas.org/sgp/clinton/eo12958.html) and 13292 merely amends certain aspects to it - the most important is the automatic extension to the VP to "classify" in the course of executive duties.

Please show me, because I'm sure I missed it, where the VP was provided with the power, as part of his executive duties, to "declassify" without review or declassify generally. The declassification section of 12958 is clearly spelled out. The amended EO doesn't appear to touch on that point.

The CIA operates in matters of declassification on EO 12292. 12958 doesn't impact the CIA as the classification (the ability to deem a document or work product as classified) amendments pertain to those in th executive offices.

The arguments put forth here that the vice president can, willy nilly, "declassify" materials not originating in his office is spurious. That power resides only in the office of the president. Indeed Freder is correct in observing that the President can't just willynilly declassify as there are reviews. The president obviously can't (or can he) be accused of violating his own executive order but there is no document that starts with Mr. Bush, goes to Mr. Cheney and then to Mr. Libby that covers Ms. Plame.

Ol' Scooter just put that out there - probably on the pushback plan of Darth Vader and when cornered, he lied about how he learned about Ms. Plame

It was that area that Fitzgerald wasn't able to crack because the keystone information rested in Libby's brain and he wouldn't give it up.

As to the particularly specious argument you make that Fitzgerald didn't have the powers or some such claptrap, yes he did. Acting Attorney Generaly Comey made sure he did so Bush couldn't fire him and that he could be funded (see Justice Department Decision B-302582.

The constitutional argument regarding whether Fitzgerald had the authority to puruse this prosecution may be a good reason to set aside Libby's conviction (I hardly think it is a "dead bang" argument) but it strikes me as a horrid reason to grant a pardon.

The argument to grant the pardon on these grounds would run like this:1. Individuals in the administration may have committed crimes.2. Because of actual conflicts of interest and/or because the office of the Attorney general lacks the appearance of impartiality necessary to pursue investigations, the office of the Attorney General is going to appoint someone to pursue an investigation.3. The office of the Attorney General, which should know what the law is, is so incompetent that it appoints someone to pursue the investigation in an illegal manner.4. The investigation results in the conviction of an individual who was part of the administration.

Bush would be pardoning Libby not because Libby was not guilty but because of the incompetence of the Bush administration.

You note that Justice has not chimed in on the issue. I don't know why they would change their tune now. It seems to me that if the AG wanted to stop the investigation the time to do that was before a conviction.

It seems to me that if the AG wanted to stop the investigation the time to do that was before a conviction.

I agree. I've seen the argument - its kinda silly to ask the case be tossed on those grounds after you allowed it to proceed on those grounds. Now, if Libby's team actually contested Fitzgerald's authority before the verdict and was denied, I can see how an appeal to on those grounds would have merit. Did they ever?

And then we have the spectacle of a juror asking Bush to pardon the man she voted to convict. Too weird:

“I would like him to get” a pardon from Bush, Redington said. “It kind of bothers me that there was this whole big crime being investigated and he got caught up in the investigation as opposed to in the actual crime that was supposedly committed.” [MSNBC]

Even assuming that Fitzgerald's supposed supervision-free status is unconstitutional (and I think it clearly is), I don't see how that helps Libby. The courts would likely simply rule that Fitzgerald WAS subject to Executive supervision during his investigation. Libby would only be saved if the President or AG had ordered Fitzgerald to stop the investigation and Fitzgerald had ignored them.

The president and the vice president -- if the president delegates the authority can declassify anything at any time, without going through any channels. Period. Not that they should, or they would. They could.

I want you lefty kooks to think about this for a minute. Suppose President Bush gets up before the American public and says "Joe Smith, who ostensibly works for an NGO in Country X, is actually a CIA officer -- an NOC." Is there a crime there? No. The President can declassify anything the President wants to declassify, any time. The onus is always on classifers to show why information is to remain classified.

I also want to make extra-special fun of the farcially absurd argument above that says the President can't declassify without first filling out forms As if the President is some schmuck applying for a payday loan.

FYI, Libby himself didn't know if the VP had the authority to de-classify and was uncomfortable so went to Addington who said it was okay. But Libby didn't divulge anything until Bush himself had declassified the NIE.